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CASE NO.: Appeal (crl.)  367 of 2005

PETITIONER: Bhimapa Chandappa Hosamani and others

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 20/09/2006

BENCH: B.P. SINGH & ALTAMAS KABIR

JUDGMENT: JUDGMENT

B.P. Singh, J.

       The appellants have appealed to this Court by special leave  against their conviction and sentence passed by the High Court of  Karnataka at Bangalore on 26th May, 2004 in Criminal Appeal No.  1485 of 1998.  The appellants were charged of the offence punishable  under Section 302 read with Section 34 of the Indian Penal Code for  having committed the murder of Lakshman at about 6.00 a.m. on May  30, 1996 while he was sleeping on the ’katta’ of his house.  The  Principal Sessions Judge, Bijapur, who tried the appellants in Sessions  Case No.144 of 1998 acquitted them of the charge by his judgment  and order of September 14, 1998.  The trial Court held that out of the  four witnesses examined as eye witnesses, two, namely- PW.8 and  PW.9 turned hostile and did not support the case of the prosecution.   The remaining two witnesses were PW-1, Smt. Nimbavva, mother of  the deceased and PW-2, Ayyappa, the younger brother of the  deceased, aged about 12 years.  On an appreciation of their evidence  the trial court held that PW-2 had not really witnessed the occurrence  while PW-1 was not a truthful witness.  The High Court on re- appreciation of the evidence on record came to the contrary  conclusion that PWs. 1 and 2 were truthful eye-witnesses and on the  basis of their evidence the appellants could be safely convicted of the  offence punishable under Section 302 read with Section 34 IPC.   Accordingly the appellants were sentenced  to undergo imprisonment  for life. The case of the prosecution is that on May 30, 1996 the  deceased was sleeping on the ’katta’in the outer portion of the house  by the side of the road, while the remaining members of the family  were sleeping inside.  According to PW-1 on May 30, 1996 her  husband Basappa, PW-3 woke up at about 5.00 a.m. since he had to  go to Muddebihal.  PW-1 and PW-2 also woke up with him.  PW-3  wanted the deceased to accompany him to Muddebihal but he insisted  on sleeping and stated that he will come to Muddebihal with food by 9  O’ clock bus.  While PW-3 left for Muddebihal, she started washing  utensils at a place which was at a distance of about 2 meters from the  ’katta’ where the deceased was sleeping.  There is evidence on record  to the effect that at about 5.00 a.m. it was dark but at about 6.00 a.m.  there was some light as the sun was about to rise.  At about that time  she noticed the three accused variously armed coming there.  While  appellant No.2 was armed with an axe the other two were armed with  ’Jambiya’.  They came saying that they will finish the deceased. In  spite of her begging of them not to do so, they started assaulting the  deceased.  She saw that appellant No.2 gave 2 or 3 blows on the neck  of the deceased while the remaining two assaulted him with their  weapons on different parts of the body.  According to her, the  occurrence was witnessed by her younger son, PW-2 and PWs. 8 and

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9, the neighbours, who had come on hearing her cries.           According to her a police havaldar came to her house after  about 4-5 hours and recorded the information given by her.  At about  12 noon an Inspector came who held inquest over the dead body of  the deceased and took other steps in the course of investigation.  The  dead body of the deceased was then sent for post-mortem  examination.                  In the First Information Report lodged by PW-1, it was  stated that about 3 months before the date of occurrence, her son  Lakshman, the deceased, who had illicit connection with  Renuka  (sister of appellant No.2) was seen following Renuka while she was  going to wash clothes to the village ’nallah’.  People of village had  seen him following Renuka and with a view to protect her reputation  Renuka complained to her mother and mother-in-law about the  deceased dragging her.  Thereafter the mother and mother-in-law of  Renuka had come to her house and abused the deceased in filthy  language.  From that day onwards the appellants were moving about  in the village saying that the deceased had insulted their sister and,  therefore, they will not spare him and will finish him.  In this  background the occurrence took place on May 30, 1996.  It is stated  that her husband got up at 5.00 a.m. in the morning since he had to go  to Muddebihal .  She tried to wake up her son (deceased) but he  insisted on sleeping since it was dark and said that he will get up after  sun rise.  She thereafter started sweeping and washing utensils.  At  about 6.00 a.m. the appellants came and finding her son sleeping on  the ’katta’ said that they will not spare Lakshman (deceased).  So  saying, appellant No.2 assaulted the deceased on his neck twice or  thrice with an axe while the remaining accused assaulted him with  ’Jambiyas’ on his back and thigh.  Her son died on the spot.  They  then ran away saying that they had finished Lakshman.  She further  stated in the FIR that her mother-in-law and her son PW-2 came out  and witnessed the occurrence.  PWs-8 and 9 of the neighborhood also  witnessed the assault.   It was alleged that out of anger and to take  revenge for her son having illicit connection with Renuka, the  appellants had committed the murder of her son.         The evidence on record discloses that all the three appellants  are the neighbours of PW.1.         Since PWs. 8 and 9 did not support the case of the prosecution,  they were declared hostile.  Their evidence was, therefore, of no  assistance to the prosecution.  Apart from the mother, PW-1, the other  witness PW-2 was the younger brother of the deceased.  The trial  court came to the conclusion that he was not an eye witness and,  therefore, placed no reliance on his testimony.  The High Court dis- agreed with the trial court and held that PW-2, in clear terms, claimed  in his examination in-chief that he had witnessed the incident and had  seen all the accused assaulting the deceased with their respective  weapons.  The High Court observed that even in his cross- examination no material contradiction had been elicited and PW-2 had  denied the suggestion that he had not witnesses the incident.  What  PW-2 stated was that he came from inside the house when his mother  PW-1 shouted and by the time he came the assault was over.  The  High Court was of the view that since PW-1 in her evidence stated  that she shouted when the assault was going on and at that time,  hearing her shouts her neighbours PWs. 8 and 9 had come, it was but  natural that PW-2, who was inside the house would have also come  out and witnessed the incident.  There was thus no reason to doubt the  testimony of PW-2.         We have carefully examined the evidence of PW-2.  Learned  counsel for the appellants submitted that on a mere reading of the  evidence it is quite clear that PW-2 is not an eye witness.  In all  likelihood he was sleeping inside the house and when he came out of  the house later, he only saw the dead body of the deceased.  He  cannot, therefore, be said to be an eye witness.           PW-2 stated that on the date of the incident he was sleeping  inside the house with his father, mother and grand-mother.  There was

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a ’katta’ in the front portion of the house where the deceased was  sleeping.  In his examination-in-chief he asserted that he woke up  early in the morning when his father and mother woke up.  His father  had to go to Muddebihal and while leaving for Muddebihal he (father)  tried to awaken the deceased but the deceased insisted that he will  come by 9 O’ clock bus and will bring meals.  The deceased again  went to sleep.  He was then asked by the deceased to bring ’beedi’  which he brought from inside the house.  The deceased smoked the  ’beedi’ and again went to sleep.  When his father left for Muddebihal  it was dark.  His mother, PW-1, was washing utensils inside the house  and at that time he was standing in the front-yard.  He saw the  appellants coming variously armed and he also witnessed the assault  by them on his brother.  The appellants after assaulting his brother  went away saying that they had finished Lakshman.  When the  accused had come, his mother PW-1, had begged of them not to  assault her son, yet the appellants murdered his brother.  When the  incident took pace there was light though the sun was not visible.   Thereafter the police had come to his house.  At about 8.00 a.m.  Inspector also came.          It appears from his deposition that while his mother was  washing utensils he was standing in the front yard of the house and he  saw the appellants coming to his house and assaulting his brother.  He  also saw the mother pleading with them not to assault his brother.   This witness in his examination-in-chief asserted that he had seen the  entire occurrence from the very begging.   In his cross-examination,  however, he gave a different version altogether.  He stated that when  his father left for Muddebihal he did not wake up.  He was not even  aware as to when his father left, as he was asleep.  He stated that on  hearing the sound of bowling of his mother he woke up and saw the  dead body of his brother.  However, he denied the suggestion that he  did not see the appellants assaulting his brother.            It also appears from the evidence of PW-11, the Investigating  Officer, that PW-2 had not stated before him that his father woke up  his elder brother and asked him to accompany him but his brother did  not go, and went to sleep, and that the accused came to their house.   He also did not state about his mother pleading with the accused not  to assault her son.   In this state of the evidence, we entertain a serious doubt as to  whether PW-2 is really an eye witness.  In his examination-in-chief he  claims to have woken up with his father when he was leaving for  Muddebihal.  In his cross-examination, his version is to the contrary.   He has stated quite clearly that he did not even know when his father  left since he was sleeping, and further that when he got up on hearing  cries of his mother, the incident was over and on coming out he had  seen the dead body of his brother.  The evidence leads us to suspect  the assertion of PW-2 that he is an eye witness.  We  are, therefore,  inclined to accept the finding of the trial court that PW-2 had not  witnessed the occurrence.  His evidence cannot be relied upon. We are then left with the evidence of the sole eye witness,  namely PW-1, the mother of the deceased.  As noticed, in the First  Information Report it was clearly stated by PW.1 that there was a  motive for the commission of the offence, namely \026 that the deceased  had illicit relations with one Renuka and this had come to the  knowledge of her family members who had protested against the  conduct of the deceased.  They had in fact come to the house of PW-1  and abused the deceased in filthy language, and since then the  appellants were heard saying that they will not spare the deceased.   From her cross-examination, it appears, that she has gone back on her  statements made in the First Information Report as also in her  examination-in-chief.  In fact she denied that she knew about her son  having any illicit relations with Renuka.  On the other hand she stated  that the relationship between the two families was cordial till the date  of murder.  Prior to the murder of her son there had been no quarrel,  complaint or dispute between the accused and her son.  The members  of the two families used to visit each other.

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The trial court as well as the High Court have not accepted the  evidence regarding existence of motive as alleged by PW-1 in the  First Information Report.  In fact she herself in the course of her  deposition denied the existence of such a motive.  The High Court has  agreed with the view of the trial court on this issue.  It is well settled  that in order to bring home the guilt of an accused, it is not necessary  for the prosecution to prove the motive.  The existence of motive is  only one of the circumstances to be kept in mind while appreciating  the evidence adduced by the prosecution.  If the evidence of the  witnesses appears to be truthful and convincing, failure to prove the  motive is not fatal to the case of the prosecution.  The law on this  aspect is well settled.  However, in the instant case we are left with the evidence of a  sole eye witness and it therefore, becomes the duty of the Court to  critically scrutinize her evidence with a view to assure itself that the  witness is stating the truth and that her evidence is so convincing and  appears to be so natural and truthful that it is not necessary to look for  other evidence to record a conviction.  Viewed from this angle, it is  established that in the First Information Report, a false statement had  been made by PW-1 as to the existence of motive.   Learned counsel for the appellant submitted that the evidence  on record will establish that PW-1 is not a truthful witness.  In fact  after her husband arrived at the scene, a false case was concocted and  the appellants were named as the assailants.  In her cross-examination,  PW-1 stated that after recording her complaint the police officer did  not read out the same to her but her thumb mark was taken on the  complaint.  Her thumb mark was taken five times on five white sheets  of paper.  After she had lodged the report she was never questioned by  police.  She, however, denied the suggestion that the police had  prepared a false complaint at the behest of her husband.           PW-1 admits that she had been made to sign (thumb mark) five  blank sheets of paper and that she was never questioned by the police.   This is only one of the suspicious circumstances which appears on  record.           In her First Information Report she had stated that PW-2 had  witnessed the occurrence after coming out of the house alongwith her  mother-in-law on hearing her cries.  In her evidence, however, she  gave a different version.  She stated that when the appellants came,  her son PW-2 was standing in the front yard of the house.  Both she  and her son pleaded with the appellants not to assault the deceased but  they were both pushed by them and the appellants started assaulting  the deceased.  An improvement has been made by the witness in an  attempt to project the presence of PW-2 from the very beginning of  the occurrence which, as we have held earlier, is not true.  Another  aspect of the matter which deserves notice is the fact that neither her  clothes nor that of PW-2 had any blood stains, though having regard  to the nature of injures of the deceased a lot of blood must have come  out.  She explained by saying that she only touched the body of the  deceased to find out whether he was alive.  The conduct, to say the  least, appears highly unnatural.  Learned counsel for the appellant  submitted that the absence of blood stains on the clothes of PWs.1 and  2 suggests that they had not witnessed the occurrence as they were  perhaps inside the house and later when they came out they saw the  dead body of the deceased on the ’katta’ with severe injuires.  It was  submitted that according to PW-2 when the occurrence took place at  about 6.00 a.m. the sun had not risen but there was sufficient light to  identify the appellants.  According to PW-2, his mother PW-1 was  washing utensils inside the house.  The speed with which the  occurrence took place as described by PW-1 is such that she had  hardly any time to raise her voice when the accused started assaulting  her son.  By the time she could raise her voice, the accused had  murdered her son and had run away.  In the light of these  circumstances it was argued before us that while she was inside the  house, the murder of her son had taken place outside on the ’katta’  where he was sleeping and the assailants had disappeared after

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committing the offence.  Her claim, therefore, that she was an eye  witness cannot be accepted.                There are several circumstances which give rise to a serious  doubt about the truthfulness of PW-1.  It is the case of the prosecution  supported by PW-1 that her husband PW-3 slept inside the house  while her deceased son slept outside on the ’katta’.  This assertion of  PW-1 is again contradicted by her husband PW-3 who stated that on  that night he had not slept inside the house.  In fact he had slept with  his deceased son on the ’katta’.  He further stated that he left his son  sleeping and washed his face and, untied the cow tethered in front of  his house and took the cow for sale to Muddebihal market.  There was  a pot of water on the ’katta’ where they had slept and he used that  water for washing his face.  He did not go inside the house.  While  leaving, he only awakened his wife.  It obviously means that without  going inside the house he may have awakened his wife by calling her  and asking her to wake up.           The deposition of PW-1 is to the effect that after her husband  left for Muddebihal she started sweeping and cleaning the utensils.   The evidence of PW-2, her son,  Ayyappa, is that after his father left,  his mother started rinsing utensils sitting inside the house and that he  was standing in the front yard.  The First Information Report is silent  where she was washing utensils but in her deposition she clearly  asserted that she was washing utensils just about 2 meters by the side  of the ’katta’ on which her son, the deceased, was sleeping in the  outer portion of the house by the side of the road.  The evidence of  PW-1 and PW-2 are, therefore, not consistent on this point.   Apart from these inconsistencies there is one another aspect of  the matter which creates a serious doubt about the truthfulness of the  prosecution case.  As noticed earlier, PW-10, Havaldar Appanna the  Havaldar of Nidagundi Police Out Post was the first person to reach  the place of occurrence.  He deposed that at about 7.00 a.m. he had  received a wireless message from the Circle Police Inspector of  Basavan Bagewadi informing him that a murder had taken place in  village Areshanker and that he should immediately proceed to the  village.  The CPI informed him that he would also be reaching there.   According to PW-10 he reached the Village Areshanker at about 8.00  or 8.30 a.m.  CPI Bagewadi had already reached the village.  They  questioned PW-1 and recorded the complaint as stated by her.  As per  the orders of CPI he took the original complaint to Kolhar Police  Station and handed over to PSI Kolhar to register a crime.  He  asserted in his examination-in-chief that CPI Bagewadi was present  when he wrote the complaint.  After a case was registered at Police  Station Kolhar a copy of the FIR  was given to him and he took it and  gave it to the CPI in the village.  He denied the suggestion that the  information Ext.P-1 was not written in the village and that it was  prepared at 2.00 p.m. in the police station.          Shri Saidappa, CPI Bagewadi (PW-11) has a different story to  tell.  He deposed that after receiving wireless message he immediately  rushed to Areshanker Village at about 9.30 a.m.  He does not claim to  have instructed PW-10 to reach the village of occurrence.  When he  went there PW-10 the Havaldar was not present.  He came to learn  that he had already obtained a complaint from PW-1 and had gone to  Kolhar P.S.   He waited till he got the FIR at about 1.30 p.m. from  PW-10 who came from the police station and handed over a copy of  the First Information Report.         According to PW-1, PW-11 came to the village at about 12  noon and held inquest over the dead body of the accused.   The defence is that PW-1 did not give any information to the  police as she was not an eye witness, and only after her husband PW-3  returned from Muddebihal a false case was concocted.  That explains  why there is so much inconsistency between the statements of PW-10  the Havaldar and PW-11, the Investigating Officer. While PW-10  asserts that PW.1 was questioned by both of them and that on the  instruction of PW-11 he left for Kolhar PS with the information to get  a case registered, PW-11 on the other hand states that when he

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reached the place of occurrence PW-10 was not there at all and that he  had already left with the report for getting the case registered at  Kolhar P.S.  This circumstance does raise a doubt as to whether the  FIR was recorded early in the morning at about 8.00 or 8.30 a.m. or  whether it was recorded later.  PW-11 does not state that he had sent a  wireless message to PW-10 to reach the village of occurrence.  In fact  he went to the village of occurrence with another Havaldar and a  Police Constable, and there he learnt that PW-10 had already recorded  the information given by PW-1, and had gone to the police station to  get the case registered.  How PW-10 came to know about the  occurrence is shrouded in mystery?  The inconsistencies in the  evidence of PWs. 10 and 11 could not be explained and this gives rise  to serious suspicion about the recording of the FIR at village  Areshanker at 8.00 a.m.  If PW-10 is to be believed that the  information given by PW-1 was recorded in the presence of PW-11,  then it must follow that it was not recorded at about 8.30 or 9.00 a.m.  as claimed by the prosecution but later at about 10.00 a.m. or 12 noon  when PW-11 as well as PW-3 came to the place of occurrence.  This  probablises the defence case that PW-1 was not an eye witness and  therefore, only after her husband PW-3 and CPI (PW-11) came to the  village, a false report was got scribed in the village or at the police  station involving the appellants.             We have undertaken a very close and critical scrutiny of the  evidence of PW-1 and the other evidence on record only with a view  to assess whether the evidence of PW-1 is of such quality that a  conviction for the offence of murder can be safely rested on her sole  testimony.  This Court has repeatedly observed that on the basis of the  testimony of a single eye witness a conviction may be recorded, but it  has also cautioned that while doing so the Court must be satisfied that  the testimony of the solitary eye witness is of such sterling quality that  the Court finds it safe to base a conviction solely on the testimony of  that witness.  In doing so the Court must test the credibility of the  witness by reference to the quality of his evidence.  The evidence  must be free of any blemish or suspicion, must impress the Court as  wholly truthful, must appear to be natural and so convincing that the  Court has no hesitation in recording a conviction solely on the basis of  the testimony of a single witness.         So tested, we do not find the evidence of PW-1 to be of that  quality.  In the first instance, she began with inventing a false story  about existence of a motive.  The narration of events as they took  place before the actual murder of her son are also shown to be untrue.   There is considerable doubt as to whether the first information was  recorded on her saying at about 8.00 or 8.30 in the morning.  Her  evidence also leaves a lurking suspicion about her being an eye  witness.  Having discarded the evidence of PW-2, and the other two  alleged eye witnesses having turned hostile, we find no reliable  corroboration of her testimony.  We do not find this case to be one in  which the judgment of acquittal deserved to be set aside.         We, therefore, feel compelled to give to the appellants the  benefit of doubt while allowing their appeal.  Accordingly, this appeal  is allowed, the appellants are acquitted of the charge levelled against  them, and they are directed to be released unless required in  connection with any other case.